U.S. Supreme Court
CONNECTICUT v. MENILLO, 423 U.S. 9 (1975)
423 U.S. 9
CONNECTICUT v. MENILLO.
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF CONNECTICUT.
Decided November 11, 1975.
Connecticut statute making criminal an attempted abortion by "any person"
held to remain fully effective against performance of abortions by nonphysicians
after Roe v. Wade, 410 U.S. 113, and Doe v. Bolton, 410 U.S. 179.
Certiorari granted; 168 Conn. 266, 362 A. 2d 962, vacated and remanded.
In 1971 a jury convicted Patrick Menillo of attempting to procure an abortion
in violation of Connecticut's criminal abortion statute. Menillo is not a
physician and has never had any medical training. The Connecticut Supreme Court
nevertheless overturned Menillo's conviction, holding that under the decisions
in Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), the
Connecticut statute was "null and void." As we think the Connecticut court
misinterpreted Roe and Doe, we grant the State's petition for certiorari and
vacate the judgment.
The statute under which Menillo was convicted makes criminal an attempted
abortion by "any person."1 The Connecticut
Supreme Court felt compelled to hold this statute null and void, and thus
incapable of constitutional [423 U.S. 9, 10]
application even to someone not medically qualified to perform an abortion,
because it read Roe to have done the same thing to the similar Texas statutes.
But Roe did not go so far.
In Roe we held that Tex. Penal Code, Art. 1196, which permitted termination
of pregnancy at any stage only to save the life of the expectant mother,
unconstitutionally restricted a woman's right to an abortion. We went on to
state that as a result of the unconstitutionality of Art. 1196 the Texas
abortion statutes had to fall "as a unit," 410 U.S., at 166, and it is that
statement which the Connecticut Supreme Court and courts in some other States
have read to require the invalidation of their own statutes even as applied to
abortions performed by nonphysicians.2 In context, however, our statement had no such effect. Jane Roe
had sought to have an abortion "`performed by a competent, licensed physician,
under safe, clinical conditions,'" id., at 120, and our opinion recognized only
her right to an abortion under those circumstances. That the Texas statutes fell
as a unit meant only that they could not be enforced, with or without Art. 1196,
in contravention of a woman's right to a clinical abortion by medically
competent personnel. We did not hold the Texas statutes unenforceable against a
nonphysician abortionist, for the case did not present the issue.
Moreover, the rationale of our decision supports continued enforceability of
criminal abortion statutes against nonphysicians. Roe teaches that a State
cannot restrict [423 U.S. 9, 11] a decision by a woman, with the
advice of her physician, to terminate her pregnancy during the first trimester
because neither its interest in maternal health nor its interest in the
potential life of the fetus is sufficiently great at that stage. But the
insufficiency of the State's interest in maternal health is predicated upon the
first trimester abortion's being as safe for the woman as normal childbirth at
term, and that predicate holds true only if the abortion is performed by
medically competent personnel under conditions insuring maximum safety for the
woman. See 410 U.S., at 149-150, 163; cf. statement of DOUGLAS, J., in Cheaney
v. Indiana, 410 U.S. 991 (1973), denying certiorari in 259 Ind. 138, 285 N. E.
2d 265 (1972). Even during the first trimester of pregnancy, therefore,
prosecutions for abortions conducted by nonphysicians infringe upon no realm of
personal privacy secured by the Constitution against state interference. And
after the first trimester the ever-increasing state interest in maternal health
provides additional justification for such prosecutions.
As far as this Court and the Federal Constitution are concerned,
Connecticut's statute remains fully effective against performance of abortions
by nonphysicians. We express no view, of course, as to whether the same is now
true under Connecticut law. Accordingly, the petition for certiorari is granted,
the judgment of the Supreme Court of Connecticut is vacated, and the case is
remanded to that court for its further consideration in light of this opinion.
MR. JUSTICE WHITE concurs in the result.
[Footnote 1] Conn. Gen. Stat. Rev. 53-29:
"Any person who gives or administers to any woman, or advises or causes her to
take or use anything, or uses any means, with intent to procure upon her a
miscarriage or abortion, unless the same is necessary to preserve her life or
that of her unborn child, shall be fined not more than one thousand dollars or
imprisoned in the State Prison not more than five years or both."
[Footnote 2] See, e. g., State v.
Hultgren, 295 Minn. 299, 204 N. W. 2d 197 (1973); Commonwealth v. Jackson, 454
Pa. 429, 312 A. 2d 13 (1973). The highest courts of other States have held that
their criminal abortion laws can continue to be applied to laymen following Roe
and Doe. E. g., People v. Bricker, 389 Mich. 524, 208 N. W. 2d 172 (1973); State
v. Norflett, 67 N. J. 268, 237 A. 2d 609 (1975).
[423 U.S. 9, 12]
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